Digital Sampling and Culture Jamming in a Remix World: What does the law allow?

Culture Jamming

What Is Culture Jamming?

Culture jamming is part of a movement; a desire to change how the world currently operates – where individuals are replaced by corporations in a culture of consumerism. The term culture jamming refers to a form of social and political activism, a resistance movement to the hegemony of popular culture which utilises the mass media to criticise and satirise those very institutions that control and dominate the mass media.¹⁰⁵ Culture jammers are revolutionaries, they intend to incite and provoke social and political upheaval, ultimately for change.¹⁰⁶ They are discontent with the control that politicians, corporations and capitalism have taken over the mass media and society in general and wish to free the public from what they see as a propagandised world. Their technique is to take conventional forms of mass communication such as corporate advertising and imitate the visuals, either logos or slogans, subtly altering the intended message to express dissenting opinions.¹⁰⁷ Culture jamming may take a number of different forms and mediums however, it is mainly restricted to the internet, posters, billboards and personal apparel like t-shirts. Some popular examples of culture jamming include:

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  Subvertising – this involves undermining the authority of corporations and politicians that impose capitalism and consumerism, and sabotaging their efforts to control the minds of the public.¹⁰⁸
  
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  Guerrilla communication – this is the intervention in the more conventional processes of communication in order to grab the audience’s attention and express unconventional views.
  
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  Google bombing – this involves the manipulation of search engine results to link search keywords with negative or humiliating phrases and websites.
  
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  Billboard liberation – this is a practice used against corporate and political advertising, whereby critical and often cynical messages replace the original message while still remaining visually similar.¹⁰⁹
  

What Does The Law Allow?¹¹⁰

It impossible to define all of the legal issues associated with culture jamming, as these will largely depend upon the medium or form in which the culture jamming takes. However, by using ‘billboard liberation’ as an example it is possible to identify a number of legal issues which may arise in similar cases of culture jamming. The first legal issue which may arise in this instance of culture jamming is the potential for the logo or slogan used in ‘billboard liberation’ to infringe copyright. Under the Copyright Act copyright infringement will occur where the culture jammer does any of the acts within the copyright owner’s exclusive rights.¹¹¹ Using the example of ‘billboard liberation’ this will most likely occur where the culture jammer either reproduces in a material form or communicates to the public an artistic work.¹¹² An artistic work is defined to mean a painting, drawing or photograph, whether or not the work is of artistic quality.¹¹³ This definition will therefore incorporate the images and drawings which feature heavily in ‘billboard liberation’. Where there is also accompanying text, this will also infringe copyright in the literary work when it is reproduced in a material form or communicated to the public.¹¹⁴ The text featuring in ‘billboard liberation’ will be classed as a literary work as it is a particular form of expression through which the ideas or information are conveyed.¹¹⁵ The scope for a defence of fair dealing based on parody is extremely limited and would most likely be unsuccessful.¹¹⁶ This form of culture jamming also has the potential to infringe the creator’s moral rights of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship.¹¹⁷
Another legal issue which arises in relation to ‘billboard liberation’ is the infringement of registered trade marks. In Australia protection is conveyed upon those trade marks which are registered under the Trade Marks Act 1995 (Cth). Trade marks are defined as ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’.¹¹⁸ This definition of a trade mark will therefore convey protection upon any ‘letter, word, name, signature, numeral, device, brand, heading, label, aspect of packaging, shape, colour, sound or scent’ providing it is distinctive.¹¹⁹
Prior to the introduction of a dilution styled provision into Australian trademark law¹²⁰ in 1995 the trademark holder would have had to prove that culture jamming created consumer confusion as to the source of goods or services leading to an action for trademark infringement¹²¹ or passing off.¹²² Since the enactment of section 120(3) of the Trade Marks Act 1995 (Cth) which provides protection for well known trade marks, which are typically owned by multinational corporations or national companies with a high market share,¹²³ a registered trade mark will be infringed where a person uses a mark that is the same or deceptively similar to a well known mark as a trade mark (regarding unrelated goods or services) where use of the mark is likely to indicate a connection with the well known mark and thereby adversely affect the interests of the registered owner.¹²⁴ Interestingly the Canadian case of Compagnie Generale des Etablissements Michelin “Michelin & Cie” v National Automobile Aeroscope, Transportation and General Workers Union of Canada (CAW-Canada) (T.D.)¹²⁵ suggests s 22 of the Canadian Trade Marks Act – a dilution provision broadly similar to the Australian provision - would not be enlivened in parody situations as in such circumstances there is no “use of the mark as a trademark”.¹²⁶ In the Michelin Case the NAATGW Union in seeking to recruit workers of the Michelin company depicted the Michelin man or ‘Bibendum’ (a marshmallow rotund figure composed of tyres) on leaflets distributed to workers in a manner so as to suggest he was just about to step on and squash a Michelin worker. The Canadian Court of Appeal held that this was not trademark infringement of any kind but was a substantial reproduction of copyright material and therefore an infringement of Canadian copyright law. The Michelin Case would suggest that in Australia in most instances using a trademark for the purpose of parody would not infringe s 120 (3) as it would not be “use of a mark as a trademark.”¹²⁷ This would allow some forms of ‘billboard liberation’ but copyright infringement could still be an issue. However as dilution laws aim to protect the value of the well known mark and ridiculing potentially devalues a mark, arguments for infringement will continue to be made and until there is a clear ruling on this issue there can be no certainty that the Canadian approach will be fully adopted in Australia.¹²⁸
As well known trademarks become part of our constructed reality and cultural environment one school of thought suggests we should have a broader right to access and utilise them as part of cultural discourse.¹²⁹ A number of US cases have considered the issue as to what extent a well known trade mark may be reproduced or re-used as a medium of expression or a part of free culture. In Lucasfilm Ltd v High Frontier,¹³⁰ George Lucus unsuccessfully tried to bring an action for trade mark infringement against public interest groups who had labelled Ronald Reagan’s plans for outer-spaced weaponry, ‘Star Wars’. The court held that despite the fact that the original meaning derived from the trade use, courts cannot regulate descriptive non-trade use, without becoming language police. The court further held that trade marks laws are designed to regulate unfair trade competition, not the development of the English language in everyday human discourse. This case can be contrasted with San Francisco Arts & Athletic Inc (SFAA) v US Olympics Committee (USOC),¹³¹ where the US Supreme Court held that SFAA’s promotion of an event called the ‘Gay Olympic Games’ was in breach of the Amateur Sports Act which allowed USOC to prohibit commercial and promotional use of the word ‘Olympic’. In this instance free speech and cultural discourse reasoning, that the word was now part of the common language, was rejected by the US Supreme Court.

In relation to parody the US courts have tended to allow trademarks to be reproduced on goods and even sold so long as it is a ‘take off’ and not a ‘rip off’.¹³² However the introduction of a federal trademark dilution law has brought some uncertainty in the case law as to the legality of parody, yet there seems to be a clear argument that ‘non commercial speech’ (in essence social commentary) involving a mark is protected by the First Amendment and such use will not amount to dilution.¹³³ The critical question will be whether parody devalues the mark? And if the answer is yes, the further question will be whether the parody devalues the mark in its ability to draw consumers or only within a broader social consciousness?¹³⁴

In terms of ‘billboard liberation’ which features a political message, it is necessary to consider the implied guarantee to free political speech. The courts have held that there is an implied freedom to communicate on political matters under the Commonwealth Constitution.¹³⁵ The implied freedom to communicate on political matters protects individuals against laws that would otherwise restrict this freedom. This body of law may therefore provide a defence to any action against a form of culture jamming which contains a political message.
It is suggested that a clearer principle needs to be embodied in Australian copyright and trade mark law to allow broader social and cultural use of trademarks and reduce the threat of being sued.